Guernsey:
The Pitfalls Of Pool Selection

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Collas Crill recently acted for the NSPCC in defending claims
for unfair dismissal brought by four of its former employees. All
four were made redundant when the charity closed its operations in
Guernsey in 2010.

The NSPCC followed what it felt to be a fair and thorough
procedure in winding down the operations and handling the
redundancies of the Guernsey based staff and, on the whole, the
Tribunal agreed. Three of the four claims were dismissed. The
Tribunal found that:

The NSPCC had followed a genuine and effective consultation
process in relation to the redundancies;

The NSPCC had made reasonable and appropriate attempts to
minimise redundancies, and support those facing redundancy with,
among other assistance, offers of alternative employment; and

Those members of staff who had been made offers of ongoing
employment with the charity had chosen to leave voluntarily in
opting not to take up those offers, and had not been dismissed at
all.

However, one of the four redundancies was found to have been
unfair on the basis that the employee had not been considered for
one of two roles which was under review by the charity as being
retained on the island. NSPCC's decision not to consider the
employee for either of these roles proved detrimental.

The facts: the employee who had been unfairly dismissed was a
manager, and not a practicing social worker; the retained roles
under consideration by the charity, however, were at practitioner
level. The employee was a qualified social worker but had not
fulfilled that role for a considerable period of time and was not
currently qualified to practice; he would have required significant
refresher training before he could do so. For this reason and
because it considered the employee too experienced, the NSPCC had
not considered the employee for the roles it was proposing to
retain and instead only considered the two practicing social
workers as the relevant 'pool'.

The NSPCC argued that it had: a) engaged in genuine and
effective consultation with staff, which at the time had not raised
the suggestion that the employee may be suited to the role; and b)
invited all employees affected by the closure to fill in
'redeployment forms' to express their interest in
alternative employment with the charity. As the employee raised no
interest in the roles at the time of the consultation, and did not
complete the forms expressing an interest in redeployment, the
NSPCC formed the view that he did not need to be considered for the
roles it intended to retain.

The Tribunal did not accept the charity's line of reasoning,
instead it ruled that in considering redundancies, and who should
be in any relevant pools for selection, the employer must consider
all those capable of doing the job, and not only those who are
currently working in a job of the same title. It was therefore
irrelevant that the employee was a manager and the retained roles
were in social practice; he would have been capable of fulfilling
the roles with a modest amount of retraining and should still have
been considered.

This decision is important as it reinforces the fact that the
onus is upon an employer to consider whether an employee should be
within a pool for selection and/or be considered for any ongoing
roles. The fact that an employee is given opportunities to express
an interest in an alternative role but fails to do so is
immaterial, and the price for such a procedural failing can be
significant. In this case, the NSPCC was ordered to pay the
employee 6 months' gross salary on top of a generous
discretionary redundancy package which had already been paid at
termination. A very hefty price to pay for failing to consider the
employee for a role which, on the face of it, was unsuitable and in
which the employee had expressed no particular interest.

The lesson here is one that has been repeated so many times:
when it comes to redundancy, despite a plainly genuine redundancy
scenario and a prima facie fair process, employers can still be
liable for significant awards if their audit trail does not show
the right boxes being ticked. Employers should seriously consider
engaging legal assistance in picking their way through the
minefield of redundancy procedures to make sure their business does
not fall foul of the pitfalls of pool selection or any other of the
many problem areas that regularly catch out the unwary.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

It is likely some employees will have concerns regarding a return to the workplace – some of those concerns may be based on a medical condition which they or a member of their household have, others...

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